The Duchess of Sussex has won her privacy case against the Mail on Sunday after a judge said there were “compelling reasons” for it not to go to trial over its publication of extracts of a private letter to her estranged father, Thomas Markle. Judgment in the case of HRH The Duchess of Sussex v Associated Newspapers Ltd  EWHC 273 (Ch) was handed down today.
The Judge, Lord Justice Warby, also found that Meghan Markle’s copyright was infringed by five articles, which included extracts of the letter, published in February 2019 in the Mail and Sunday and on Mail Online.
He said: “It is undeniable that they reproduced a substantial part in qualitative terms, and in the sense that they reproduced a substantial part of ‘that which is the author’s own intellectual creation’.”
He added: “This is not one of those rare cases where freedom of expression trumps copyright. There is no basis on which the court could conclude that, although the copying was not fair dealing, the public interest required the copyright to be overridden.”
However, Lord Justice Warby said a trial could still go ahead on limited parts of the copyright claim, after the Mail on Sunday’s lawyers claimed that authorship of the letter was not solely the Duchess’s, but potentially shared with Jason Knauf, her former communications secretary.
Although the judge described the Mail on Sunday’s factual and legal case on authorship issue as occupying “the shadowland between improbability and unreality”, he said it was not “fanciful”, and that the law allowed for it to be tested at trial.
It means evidence offered by staff on the Kensington Palace communications team, known as the ‘Palace Four’, about the processes by which the Duchess’s personal letter to her father was drafted, may yet be heard.
A legal source said: “The judge has offered his view that it is ‘not easy to identify a useful litigious purpose’ in a trial on the authorship issues in the copyright claim, which is obviously discouraging for the Mail on Sunday.
“It also suggests that after such a big win on the major issues in her case with the Mail on Sunday, it would be disproportionate to carry on, although that was not something the judge was allowed to consider in arriving at his judgment.”
On the Duchess’s claim for misuse of private information, and on other parts of her copyright claim, Lord Justice Warby’s judgment was emphatically in her favour.
Her lawyers had argued that the newspaper’s publishers, Associated Newspapers Ltd, had “no prospect” of defending her claims for misuse of private information and alleged breach of copyright.
They successfully argued her case was so strong a trial was unnecessary on those parts of her claim.
* A hearing on “next steps” has been set for March 2, 2021.
This post originally appeared on the Byline Investigates website and is reproduced with permission and thanks